Okay, we’ll take the bait.
Twice yesterday, Jane Genova over at Law and More asked us whether Congress will pass a bill overruling the Supreme Court’s recent decision finding preemption in the context of certain medical devices. See Riegel v. Medtronic, No. 06-719, slip op. (U.S. 2008).
Here’s our response:
First, we’re not lobbyists. We’re litigators; we don’t spend any time on the Hill; and we have no particular insight into the legislative process.
(Actually, we’re not yet sure that we’re legitimate bloggers, either. But we’ve been doing it for a while, and no one seems to have noticed, so what the heck.)
Second, we’re pretty sure that the current Congress won’t pass a law to overrule Riegel. The issue’s too hot, and there’s not enough time before November for Congress to act.
Third, it’s awfully hard to predict what might happen next year. If you tell us the results of the elections in November, we’ll tell you what will happen in the legislative process afterwards.
Finally, history suggests that Congress won’t overrule a preemption decision by the Supreme Court. A student note in the Harvard Law Review last year — “New Evidence On The Presumption Against Preemption: An Empirical Study of Congressional Responses to Supreme Court Preemption Decisions” — looked at this question empirically and provides the easy answer:
“This Note . . . looks at Congress’s responses to every Supreme Court preemption decision between the 1983 and 2003 Terms to see whether the facts support either side’s argument. Ultimately, this Note concludes that neither side should make arguments based on likely congressional responses to the Court’s preemption decisions. The data show that Congress almost never responds to the Court’s preemption decisions . . . .”
We’re not sure if the past is prologue, but we can’t do much better than that.